Courts and sentencing

It has been nearly two years since 24-year-old Jared Lee Loughner opened fire upon a crowded plaza in Tucson, killing six and wounding several others, including U.S. Rep. Gabrielle Giffords. Yet, after all the legal maneuvering, Loughner received sentence that guarantees he will never again walk free.

Mass murderers like Loughner or Winchester's Thomas Mortimer deserve nothing less than life imprisonment given the enormity of their crimes. While absolutely fair and appropriate for such atrocities, there are many other offenders, particularly here in Massachusetts, who receive the very same fate but who arguably deserve something less extreme.

In Massachusetts all defendants convicted of first degree murder are sent away to prison for life without the possibility of parole, regardless of any mitigating circumstances surrounding the offense or the offender. By contrast, two dozen states having life without parole on the books include it among a group of alternative sentences depending on the circumstances of the offense and the offender.

The third time will be anything but a charm for a 48-year-old Texas inmate who will return to the state’s execution chamber after twice before coming within hours of getting the needle. Cleve Foster, a former army recruiter who was convicted a decade ago of murdering a Ft. Worth woman, will repeat today a bizarre death ritual that has become all too familiar.

One again, Foster will be escorted by van the hour-long trip from his prison cell in West Livingston to the lethal injection chamber in Huntsville. Once again he will sit in silent solitude awaiting his fate and praying that the U.S. Supreme Court will intercede as it had twice before. Once again he will be served a last meal, whether or not justice will be served afterwards. Only this time, Foster will not have his choice of menu, as this long-practice gesture of mercy was banned last year by order of Texas Department of Criminal Justice.

If the death sentence is indeed carried out today, Foster will also be given his opportunity for some final words before poison is injected into his veins. Some condemned prisoners take this occasion to add insults to injury, while others invoke their right to remain silent. Sometimes inmates confess to their crimes, if only as a last gasp attempt to purge their conscience or offer some small measure of solace to the surviving victims. And, of course, many use the occasion to protest their innocence right down to the bitter end, as Foster will likely do.

In a private ceremony closed to the public, closed to the press, but open by invitation to victim-activist Les Gosule, Gov. Deval Patrick signed the sentencing reform bill, which includes the hotly debated three-strikes provision. It was a great day for Mr. Gosule who saw the fruition of his 13-year-long struggle in memory of his daughter Melissa, an opportune day for some legislatures who are eager to remind their constituents as the November election day approaches of just how ”tough-on-crime” they stand, but a sad day for the Commonwealth which was once seen as a model for criminal justice policy.

12:30 PM -- Author's Note and Update: Within hours of posting this blog piece calling on Governor Deval Patrick to veto the three-strikes component of the pending sentencing reform bill, he did in fact send the measure back to the Legislature with a proposed amendment that would allow for judicial discretion. Rather then attempting to override, the Legislature should embrace the wisdom of Patrick's modification.

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8:45 AM posting

Governor Patrick should veto 3-strikes

With the legislative deadline fast approaching, lawmakers, lawyers, and legal observers are all watching closely to see what Governor Deval Patrick decides to do with regard to the sentencing reform bill on his desk. Will he veto the legislation out of concern that the three-strikes component does not permit judicial discretion -- the so-called “safety valve”?

And if the Governor does indeed bounce the measure back to the legislature, will it move quickly to override? Here’s hoping that the Governor does and the legislature does not. The bill potentially has unintended deadly consequences.

Leaving aside the debate over correctional costs associated with warehousing criminals well past their crime-prime years, I have two concerns. The first involves the overly broad range of offenses among those that disallow parole, and the other relates to the subset that is punishable by life without parole.

Monday’s 5-4 Supreme Court decision disallowing mandatory life sentences without parole for defendants convicted of murder perpetrated before their 18th birthday moves us significantly closer to a rational system for punishing young offenders. It provides hope for hundreds of prisoners around the country, including more than 60 in Massachusetts, who until now saw no chance of ever walking free.

Massachusetts is one of 28 states impacted by the Court’s decision in not considering mitigating factors and special circumstances that might warrant parole eligibility. Belying the undeserved reputation for being soft on crime, the Commonwealth arguably has the nation’s stiffest sanction for juvenile murder. Anyone as young as 14 charged with murder is automatically tried as an adult, and if convicted of first degree murder, receives a mandatory sentence of life without parole.

The decision potentially opens the cell door someday for a prisoner like Joe Donovan, Jr., who was given a life sentence for his part in a mugging two decades ago during which an accomplice fatally stabbed the victim. The decision also could affect someone like Kentel Weaver who received an automatic life sentence for his involvement in a murderous joint venture, despite the fact that he voluntarily came forward and confessed to the police his role in the unsolved crime.

The ruling provides flexibility for exceptional cases like John Odgren, a developmentally challenged youngster who stabbed a schoolmate to death at Lincoln-Sudbury High. Upon condemning Odgren to his lifelong fate, the trial judge went on record bemoaning the lack of any alternative option for handling his special circumstances.

Tomorrow morning, the justices of the U.S. Supreme Court will hear oral arguments in two cases, Jackson v. Hobbs and Miller v. Alabama, challenging the controversial practice of sentencing juvenile offenders to life imprisonment without the possibility of parole. Hopefully, the Court will resist the common visceral response to youth violence and consider the scientific evidence that, as compared with adults, adolescents are less equipped to contemplate the consequences of their crimes, are more susceptible to pressure from peers to engage in behaviors they would not ordinarily commit on their own, and may, therefore, someday earn a second chance.

It has been decades since state legislatures around the country overreacted to the late-1980s surge in youth violence by expanding the pool of juveniles who could be tried and punished as if they were adults. Several criminologists (with me among them) had warned that juvenile crime rates could continue to surge if there were not a deep and determined investment in youth development. Unfortunately, most politicians took an alternative approach, emphasizing punishment rather than prevention.

The wholesale transfer of juveniles to the jurisdiction of the criminal court was supported by the catchy, yet illogical slogan, “adult time for adult crime.” Juveniles may look like adults, talk like adults, and even kill like adults, but they reason like the immature kids they are really are. Adolescents are not just a smaller version of adults.

No surprise that there aren’t many criminologist jokes floating about, at least as far as I’m aware. Still, I do recall one I heard back in graduate school that may actually have some relevance to the ongoing debate up on Beacon Hill concerning the best approach to punishing the worst offenders.

It is told that there was once a very old land ruled by a very old King who, in a gesture of compassion from his deathbed, ordered all prison sentences to be immediately cut in half. By the King’s decree, a robber’s ten-year prison term was commuted to five years, and the rapist who was serving a 30-year sentence saw his penalty reduced to 15 years. But prison officials, having to carry out the King’s wishes without deviation, had no clue on how to proceed with halving the sentences of murderers serving life. The Warden was just about as confused as many appear today about the House and Senate bills pertaining to habitual offenders.

To make a long and lame story short and painless, the punch line came in the advice that the Warden received when consulting with a local criminologist about how to administer half a life sentence. “Let the murderer go free tomorrow,” recommended the criminologist. But before the Warden could utter a word of dismay, the learned advisor continued detailing the plan. “Then bring him back to prison the next day, and continue the release/return process for alternating days of freedom and incarceration until the convict dies a natural death.” Never was the term “revolving justice” any truer.

The turn of the calendar always brings news about how crime levels have trended over the previous year. And like many cities around the country, Boston witnessed fewer crimes in 2011 than 2010, including a double-digit drop in homicide.

With crime rates at a 50-year low, this is a good time to re-examine our criminal justice policies, especially those measures implemented in a knee-jerk fashion when crime rates and higher levels of fear were peaking. We should begin in the areas that are a significant drain on the budget, such as our over-reliance on lengthy prison terms for juvenile murderers who, after decades of incarceration, no longer pose a danger to society. And this is hardly a left-wing, soft-on-crime idea, as even conservatives like Newt Gingrich have argued that we can't afford to continue pouring vast sums of tax dollars into prison systems.

Currently under consideration by the Massachusetts Joint Committee on the Judiciary is a pair of bills (S. 672 and H. 1346) that would eliminate sentences of life without parole for juvenile murderers. Under the existing statute, passed back in 1996, all juveniles as young as 14 convicted of first degree murder -- including felony-murder and acts committed by accomplices -- are hopelessly ineligible for parole consideration.

In its breadth and rigidity, Massachusetts law stands as one of the very stiffest in the nation. The proposed juvenile justice reform would directly impact the 59 juvenile murderers currently locked up for life in Massachusetts prisons. If the legislation is passed and signed into law, the Massachusetts parole board would be empowered to grant second chances to juvenile murderers, that is, of course, only if deserving of such after lengthy incarceration.

An amendment to the Senate parole reform bill (S.2054) debated today included a provision to grant parole eligibility to juveniles convicted of murder. Unfortunately, and to the disappointment of amender Sen. Harriette Chandler (D-Worcester), that provision was dropped.

This was a good day for the criminal justice system. A federal judge set aside the death sentence given confessed serial killer Gary Lee Sampson upon proof that one of the jurors who had recommended death had concealed information that would have disqualified her from service.

Despite the fact that justice prevailed, this turn of events will undoubtedly upset many people -- and for very different reasons.

About the author

James Alan Fox is the Lipman Family Professor of Criminology, Law, and Public Policy at Northeastern University. He has written 18 books, including his newest, "Violence and Security on Campus: From Preschool through College."
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